Papers

UNIVERSITY OF WALES, ABERYSTWYTH



Dissertation submitted towards the award of

The Degree of

LLM in Environmental Law and Management





by

Peter Alexander-Fitzgerald

entitled



Built Heritage Law: A Case of Mistaken Identity?





September 2000















SUMMARY

Methodology: There will be a brief description of the methodology employed and the resources consulted.

Introduction: will contextualise archaeology within the framework of conservation law. There will also be a brief analysis of the relationship between upstanding buildings, occupied or otherwise, and the archaeological site, distinguishing between the visible and the invisible elements of the built landscape.

Chapter 1: will contain an outline of the development of archaeology as a science and an overview of the associated legislation from the seventeenth century to date.

Chapter 2: is an introduction to the personalities involved in formulating early legislation in England and America and an examination of their ambitions and desires for that legislation. The principal question to be addressed is what was the purpose and function of that legislation?

Chapter 3 will examine the developments in England to 1945 and will conclude with an examination of the Irish method of resolving its own unique set of problems.

Chapter 4 continues an exploration of the path toward the present and some old problems will be revisited.

Conclusions in the final analysis the English, American and Irish Acts do what was intended by their originators but show strengths and weaknesses that are not instantly apparent. The question to address is is it the workman or his tools? A mistaken identity is explored.



CONTENTS

Table of Cases

US cases

Methodology

Introduction

Chapter One: The Development of Archaeology as a discipline



Chapter Two: The Personalities and early Acts to 1900

(US and UK)



Chapter Three: 1900 to 1945 and an Irish interlude



Chapter Four: Modern developments 1945 to 1979

and the effects of environmental law



Conclusions



Bibliography



Legislation





Table of cases

U.K.cases R v Seymour [1988] 1 P.L.R. 19

R v J O Sims Ltd (1993) 14 Cr. App. R. (S) 213

R v Simpson (1993) 14 Cr. App. R. (S) 602

R v West Oxford District Council, ex parte Pearce Homes [1986]

J.P.L 523 QBD

R v Swale Borough Council and Medway Ports Authority ex parte

RSPB [1991] JPL 39

R v Pool Borough Council ex parte Beebe and others [1991] JPL 643

R v Somerset County Council and ARC Southern Limited ex parte

Dixon.

R v North Somerset District Council and Pioneer Aggregates (UK)

Ltd ex parte Garnett and Pierssene [1997] EWCH 305

US cases United States v. Gerber 999 F. 2d 1112

(7th Cir. 1993, cert., denied 510 U.S. 1071 (1994)

United States v. Diaz 4999 F. 2d 113 (9th Cir. 1974)











Methodology


One of the stated aims of this dissertation was to determine as far as was possible the motivation behind the first Ancient Monuments Act and its continued development. The second aim was to compare this with some other jurisdictions and the third to briefly examine the effect of European and international initiatives on the legislation of England and Wales. To assist in this it was necessary to first examine the record contained in Hansard from 1872 to 1900. The principal difficulty encountered here was that the record contained very little information concerning the committee stages or the bills movement through the house. It was therefore felt necessary to examine, briefly, biographical details of at least some of those people involved in both the English and United States legislation. It was then felt necessary to examine the attitudes of those principally affected by the legislation by studying the reports of Archaeological Societies. Then a detailed study was made of the English Acts to 1910 and American legislation covering the same period. The Irish legislation was treated differently, due to the fact that all of Ireland was covered by the 1882 Act but modifications were made subsequently as Ireland obtained more autonomy, leading to final independence in 1922. European legislation and policy directions from the 1960's to date were examined. Of particular interest was the interpretation of the term built heritage. In the European context this implies buildings and structures both public and private, and whether or not still in use. This was compared with the English definition, whereupon it rapidly became apparent that England distinguishes between buildings and archaeology to a much greater extent.

To determine the interpretation of legislation during the last 30 years many personal contacts were developed with lawyers operating in the field, and also with organizations and individuals involved in the conservation of the built heritage.

It soon became apparent that a high degree of confidentiality was required by all those making comments on the present situation and it has therefore been necessary to avoid wherever possible making any references that could be used to identify













individuals contributing to this work. This, to me rather surprising, attitude is, I believe, due to the small number of persons directly involved in archaeological conservation and the fact that they all depend upon each other for continuing employment. At the national level, English Heritage, the Welsh national organisation CADW and the Society for the Protection of Ancient Buildings were contacted both officially and unofficially, as were the four archaeological units operating in Wales and the Royal Commission for Ancient and Historic Monuments (Wales). At the next level of management, area managers for English Heritage and County Archaeologists and Conservation Officers were consulted using both telephone supported by email and personal contact. Knowledgeable input regarding the law and its operation was somewhat harder to find. English Heritage was disinclined to comment officially as was CADW. Much assistance was provided by Charles Mynors (barrister) and Neil Cookson (solicitor) by telephone and personal contact. One difficulty encountered with the case law, especially regarding archaeology, is that in the past very many actions have failed and have not been heard in court. They have not even been reported in the local press, with the result that most of the information concerning them is therefore hearsay. Those immediately concerned with conservation of the past, advisers, consultants and field workers showed considerable concern regarding the effectiveness of the legislation, one going so far as to say don't let developers know how weak it really is.





Introduction



England, when devising new legislation that affects land, must always bear in mind the widely held belief that "an Englishmans home is his castle". Any limitations or restrictions placed upon the owner or occupier having the enjoyment of the land tend to be considered as an infringement of rights. This is especially true of farm and forestry land even under the present Town and Country Planning Act (1990 s.55 (2)(e)). The freedom of action available to a farmer is extensive; even the construction of off-road structures more reminiscent of industrial factory units than traditional farm buildings are subject to few controls unless they are of excessive size or near dwellings[1]. Further to this it is difficult to regulate to any extent actions taking place in fields away from roads. Farming as an industry has developed through time and new working practices have been introduced, especially in the 20th century. It is not unnatural, and indeed perfectly understandable, given the economic problems currently associated with the farming industry, to find that the farmer may not always be cooperative when advised that continued deep ploughing, for instance, is detrimental to a monument which may or may not interest him and which has not been seen for hundreds if not thousands of years.



To say that ancient monuments were not protected by law prior to 1882 would be wrong, but the principal protection was provided by a law more readily recognisable to Aeschylus than to a modern judge.[2] The great majority of sites were in the countryside and had with time acquired a host of protectors. Whether it was the Tylwyth Teg of Pentre Ifan, or the Piskies of Carn Brea, a farmer or ploughman did well not to offend. The penalties associated with transgression were well known and included making cattle barren and putting a blight on growing crops. Sir John Lubbock[3] mentions such a transgressor who knew the tariff of penalties and sacrificed a heifer in payment for damage done to a burial mound by another, but on his property, on Anglesey in the mid 1840s. This powerful "police force" kept the Neolithic chambered tomb of Wayland's Smithy on the ancient Ridgeway in Wiltshire and its like safe for over 3500 years but it did not protect the standing stones of Avebury from the road menders' hammers. As secular education became more readily available throughout the British Isles so the local sprites lost their teeth. Is legislation a better protector? In the 1980s one developer in Monmouth gave full and free access to his site for as long as the local archaeologists needed it but just down the road another developer deliberately trenched and concreted a site as soon as he discovered that the archaeology contained in it might limit his options even by a few weeks[4]. On being informed, the Council held discussions with the developer in private, and then, using a council staff member as the archaeological expert, stated that as there was no evidence of "archaeology" visible then no damage had been done thus no breach in planning conditions had been committed and no further action was to be taken[5]. All the primary and secondary legislation available afforded no protection at all. Until less than a hundred years ago it was generally felt that the spirits of an elder age protected the mounds, but as educational standards have improved, archaeologists, philosophers and historians have promoted the idea that the key to a better tomorrow is a better knowledge of the past. Now perhaps the mounds are the protectors of the spirit of the past and legislation with liberal help from Clio, the muse of history, is the protector of the mounds.



Occupied buildings, on the other hand, along with royal palaces and castles had always fared somewhat better. They were, especially churches, always subject to constant change and modernisation. The gothic revival in architecture during the nineteenth century led to a considerable amount of destruction. The preferred method of repair was to demolish and rebuild in the same style. As a reaction to this wholesale destruction, William Morris and others founded the Society for the Protection of Ancient Buildings (SPAB). Palaces, castles and royal fortresses and other military structures had, from the medieval period, fallen within the protection of the Keeper of the Kings Works, later the Ministry of Works and government Acts that afforded protection were introduced from time to time.

A parallel can be drawn between buildings and pandas, archaeology and microscopic life forms in terms of a public image. The first two in each case are highly visible and produce a sympathetic response from most people, while the latter two are largely invisible and therefore elicit very little response. Compare the effect on the sensibilities (and the purses) of the general population of, say, a medieval cathedral and a Neolithic enclosure, or a row of weavers houses and the site of a medieval peasants hut.



It is the intention of this work to examine the early development of ancient monument and listed building legislation in England and Wales and the associated official and unofficial policies that are related to it through, as far as possible, the words of those intimately connected with it. This is partly to determine the intentions of the movers and proposers of the Acts themselves, rather than later commentaries and also to set these developments within the framework of other nineteenth century legislation that set the trends and methodology for future legislation. Special attention will be paid to the relationship between buildings and archaeological sites and the problems arising therefrom. It will also be necessary to examine other areas of law such as that relating to the environment and planning and the use of secondary legislation where it directly affects the protection and use of the built historic landscape.

While English built environment legislation will form the core of this dissertation, two other jurisdictions will be outlined for the purpose of comparison; that of the republic of Ireland from 1869 and that of the USA from 1882. The reason for this particular choice is that both have legal systems based on common law but both have departed from the English system - Ireland formally in 1922 and the USA in 1776. Due notice will also be taken of the possibility that the underlying motivation and philosophy, at least in the early development of the respective acts, was different.











Chapter 1
The development of Archaeology as a discipline


The first known professional standard field archaeology survey in England was undertaken in 1663 at Avebury in Wiltshire by John Aubrey, a local gentleman and land owner and Fellow of the Royal Society. The patron of the society, Charles II, was so impressed with the description of the site that he went to see it. Even though his interest was fleeting it helped to make pre-history a subject worthy of study and led to the publication of Aubrey's 'Monumenta Britannica' a work on pre-historic remains.

During the eighteenth century the discipline was carried forward by other gentlemen antiquarians, exemplified by Stukeley, a man who added a new dimension by writing about his 'discoveries', somewhat imaginatively but nevertheless with an eye for detail. To a great extent he and his like set the trend for the next two hundred years or so.

In the mid nineteenth century we find the gifted amateur such as Colt-Hoare, wealthy, independent, inquisitive and extremely well connected. He was one of the last generation of paternalistic landowners. His example was followed by many others in all walks of life, such as the Rev. Gilbert White with his 'Natural History of Selborne'. Local societies had access to local knowledge, and membership at this time largely comprised of local landowners and people of intellectual pretensions. They did have unrivalled access to old family records and libraries. At this time (1846) was founded the Cambrian Society, publishers of the periodical Archaeologia Cambrensis. In fact this period saw the growth and development of all sorts of societies, and publications including the Victoria County History Society[6].



In the late nineteenth century, the period of the great rationalistic Victorian scientist, archaeology became a science with a greater emphasis on recording, although not necessarily on publishing, underpinned by theory largely based on Darwins theories of evolution. This period also saw the justification of archaeology as a professional discipline by use of legislation and the development of scientific excavation techniques.



The early twentieth century saw the development of a new breed of archaeologists - professionals paid to do the job by the state as inspectors. Great men were still drawn to archaeology from other sources - from a classical or architectural background and these men generally directed excavations and wrote them up when time permitted. The jobbing archaeologists - the diggers - wanted to see their job as a legitimate profession but lacked formal training and, still relevant, social status. Sir John Lubbock had wanted to see archaeology as a science. Leading archaeologists at this time pursued the science of archaeology in parallel with normal paid occupations, such as museum curators and directors. Such people were naturally inclined to seek the company of like-minded persons - as were to be found in national and county societies - the Prehistoric society was founded at this time[7]. To a great extent, much of the strength of local societies lay in their ability to identify new sites and place them within the context of the area. Most of their activities were desk-bound due to age and infirmity, but they were also responsible for instigating investigative excavations. Their input to conservation by record derived from this in that they could spot where local building activities or changes in agricultural practice would endanger known sites. They usually had sufficient manpower for what were in effect rescue excavations of the type that would be associated with building development and its associated planning guidance such as PPG16[8] today. With the introduction of the Ancient Monuments Protection Act 1913 much of the desk-based element of this work was carried out under the guidance of the Ancient Monuments Inspectorate at national and county level. This seemed to some people to be a depreciation of the importance of the role of the local society and thus reduced the incentive for them to do it or to publish what they had already achieved.



By the 1920s many of the great archaeologists of the day were better known as excavators than for their day jobs - Mortimer Wheeler, for instance, who was also Curator at Cardiff Museum. Many excavations of this time start to be for specific academic reasons rather than a general quest for knowledge and the period marks the slow decline of amateur excavations both in number and status. At Sutton Hoo the landowner asked the local museum for help. The curator found her a self-taught excavator for the first of three excavation campaigns, started in the 1930s. But once the importance of the site was realised, legislation enabled the project to be taken over by the British Museum and the Office of Works.

At this time, professionals and academics begin to take the lead in local societies, but this tended to increase the number of formal lectures rather than develop the skills required for excavation and research.



The 1950s saw the development of scientific dating techniques and analysis of finds and soil and so on, but the consequent increase in cost of these areas of research took it out of the reach of all but the most well-endowed organisations, most of whom were academic, and primarily universities. In parallel with this was an increasing requirement for a professional and academic qualification in archaeology. This can be demonstrated by the increasing number of university places available to read archaeology[9].



In the late 20th c archaeology as a subject then walked into problems of its own making. Firstly the increasing academic requirements led to an increase in theoretical archaeology at the expense of practical excavation. Secondly the result of the 1979 Act and its related Guidance Notes (the specialist PPGs) put tremendous demands on existing field archaeologists. Thirdly the need for analysis and the hugely increased output resulting from rescue archaeology pushed a great deal of archaeological investigative work on to specialists in other fields - botanists, biologists, soil scientists, etc. who now also started to look on themselves as professional archaeologists - palynologists, palaeo-botanists, palaeo-zoologists, etc. This in turn led to a renewed interest in societies, but this time they tended to be national and subject-specific, such as Rescue, or at the other extreme local and site specific[10]. Many of the skills now required in archaeology were to be found in local county societies with their archivists, local historians, botanists, zoologists, etc. and many of these had an additional commodity that was in very short supply - time for research. These skills are especially needed now that archaeology is seen as a part of local, regional and national heritage landscape history. The wheel has effectively turned full circle and the pure excavator is now a minor, underpaid player in the field of archaeological excavation, the amateur specialist has returned and the societies have more work to do.

This present state has been legally reinforced to a certain extent by such pan-national initiatives as the 1990 ICOMOS Convention and the move towards conservation in situ.



Chapter 2

Personalities and the historic background to the 1882 Act, 1872 to 1882. Its use to the end of the century.





One of the prime movers for legislation was Sir John Lubbock (later Lord Avebury), Member of Parliament for Maidstone, a trustee of the British Museum and author of Prehistoric Times published in 1865, about prehistoric Britain. He was much involved in the training of teachers and concerned with the need to have formal registration to show competence. Sir John was both the moving force behind 1882 Act and was influential in the 1900 Amendment Act. Both, it has been claimed, were failures in that they did not achieve their intended aim (Carman 1996). If taken at face value this assumption is probably correct. But before making such a statement it is necessary to determine Lubbock's reasons for placing the Bill before Parliament and to do that it is necessary to know something of the man and his public and private ambitions. In many ways Lubbock was a man of his time and place - wealthy and self-educated. Lubbock's first claim to fame was as a banker who developed the clearing-house system and who was actively engaged in politics.

His involvement with archaeology stemmed from concern with damage to the Cursus at Stonehenge and the effect of ploughing on the monument. By 1871 he was involved with the Anthropological Institute. He addressed that Institute on the 15th of January 1872: -

"The continued destruction of prehistoric monuments is a fact which

I am sure we all deeply regret, and which reflects little credit on us as

a nation. This year a portion of "Abury"(original spelling), the

grandest monument of its kind in this country (perhaps in the world),

was actually sold for building purposes in cottage allotments."



Lubbock was so concerned by the possible fate of the monument when notified of the sale by the rector of "Abury", the Rev. B. King, that he authorised him to purchase the site. Avebury had suffered damage in the past when stones had been destroyed for building material but the present threat was due to an expanding population.

". the chief danger had become the building of more cottages

within the earthwork as the population of the village increased.

In 1841 just under five hundred people lived there but by 1871

there were half as many again."



(Aubrey Burl, Prehistoric Avebury, Yale University Press 1979)



Lubbock then negotiated with cottagers who had already purchased allotments and arranged to exchange holdings with them so as to consolidate the site; an early example of land management by consent. He also bought the archaeological sites at Silbury Hill, West Kennet long barrow and Hackpen Hill. It was hoped that his example would inspire other landowners to do the same. It was at the same meeting of the Anthropological Institute in January 1872, that he announced his intention to place a bill before Parliament that year, prepared by the treasurer of the institute, Mr Flower, to prevent the destruction of other ancient monuments. Comments on this Bill and the second attempt in 1873 were made in the miscellaneous notes of the Cambrian Archaeological Association in 1874. The loss of the bill at its second reading on the 15th of April 1872 by 53 votes, although regrettable, was not considered too great a blow as many of the provisions were "vague and unsatisfactory" But it is possible that the principle reason for the cool reception afforded the news was that only three Welsh monuments (including King Arthur's Quoit in Gower) were included in the list, and Cornwall and Devon were equally poorly treated. The consensus was that it was a Saxon Bill for Saxon monuments. If the members of the Cambrian Archaeological Association had taken a closer look at the schedule they would have seen some other interesting points. All of the sites in England were grouped in or near the estates of Lubbock and his supporters with the exception of Kit's Coty House, near Maidstone in Kent. Lubbock was the Liberal MP for Maidstone.



General Pitt Rivers (another prime mover of the 1882 Act) was the owner of a considerable number of monuments on his estate on Salisbury Plain and was also the father in law of Lubbock. He was more concerned with the development of excavation and recording of sites than simply preserving them. He was an early exponent of the scientific approach to large-scale excavation and the keeping of very detailed records of all finds, on the basis that what he did not understand those following might. He became the first inspector of ancient monuments in 1883, following the adoption of the Act in 1882, a post he held until his death in 1900. It was not long before he found that the act did not enable him to work in the way that he wished; there was little scope to develop the contents of the schedule and very little financial support from the Treasury. There was also the problem of enforcement as evidence for a conviction was almost impossible to obtain.

One of the points that emerged on examination of these documents is that the treasury objected to any expenditure on the part of the government. This appears to be true on every occasion that the Bill was introduced. All of which seems strangely familiar.

Lubbock's first bill, introduced as a private Bill in 1872 was comprehensive and included the need for a National Monuments Commission whose members were to include the presidents of the Societies of Antiquaries of London, Scotland and England, the Keeper of British Antiquities and the Master of the Rolls. A schedule that contained all archaeological sites of national importance, excluding inhabited or ruined buildings, sites that formed parts of castles and abbeys, ecclesiastical buildings in use and parks and gardens. On the plus side the Commission had the authority to take a power of constraint on any scheduled monument after first notifying the owner, who had the right of appeal through the courts. This effectively stopped the owner or occupier from modifying the site without permission. If he wished to he could then offer to sell the site to the Commission. The Commission also had the power to acquire the freehold or the right of public access by agreement with the owner. The commission had the duty to inspect and maintain and fence the site at public expense with a 100 yard protected zone around it. Much of this was lost on the way to the statute book - and it was a long journey. It was placed before parliament every year for the next seven years and was not even debated until 1875. There can be no doubt that it was seen as an assault on land owners and occupiers rights to free enjoyment but it was seen as more than that by some. One critic of the bill, Sir Charles Legard (Tory), described it as burglary by daylight and then went on to say that it was

an insult to the spirit and enterprise of private citizens who

inherited these ancient monuments.



Other Tory MPs were critical of the bill for the reason that the monuments were irrelevant traces of a primitive past. But the most damning comments were from W. H. Smith, Secretary to the treasury and concerned the cost to the public purse. The political climate in late Victorian England was not conducive to a bill that did not produce an obvious public benefit such as a railway or factory town development. But Lubbock did not give up. After 1881 the Gladstone Liberals were in office and Lubbock, now MP for London University, tried again. Lubbock was by now a Liberal member with a good record of service to the party, having in the past helped with the passage of a considerable amount of government business, so it was therefore not surprising that Gladstone agreed to consider the bill. It came, incidentally, at a time when the government was thinking of producing a bill on the same subject. The bill was discussed and agreed and placed before parliament at the beginning of 1882 and passed through all stages with little comment. It would be pleasant to think that parliament had recognised the importance of the archaeological heritage at last but the bill had been placed between blocks of government business concerning expenditure and the problem of the Zulu nation had reached a crucial stage, thus exercising the collective mind of Parliament.

The act was given Royal assent on 18th August 1882. Only ancient monuments listed in the schedule were covered (26 in England, 3 in Wales, 21 in Scotland and 18 in Ireland). The Commissioners of Works only gained guardianship if the owner of the designated monument voluntarily passed it to them by deed, and it could be reclaimed by any succeeding owner not bound by the deed (s.2) It in no way diminished his rights in law that went with the land excepting in one respect; he was subject to the same penalties as any one else under s.6. Or under s.4 the Commissioners could accept a "gift, devise, or bequest" of any of the scheduled monuments if they felt it expedient. The Commissioners were also empowered (s.3) to purchase any of the monuments named in the schedule with the owner's consent and agreement from the Treasury to facilitate this. The Lands Clauses Consolidation Acts was incorporated with the Act with the exception of provisions relating to compulsory purchase. The Commissioners also had to appoint one or more inspectors whose duty it was to inspect all scheduled monuments and report on their condition (s.5). The terms and conditions of inspection and maintenance were outlined in s.2. The penalties for damaging a scheduled monument were outlined in s.6 (1). A fine not exceeding £5 or (2) up to one-month imprisonment with or without hard labour. All of the monuments in the schedule were unoccupied prehistoric structures. The penalties also applied to owners who had invited the Commissioners of Works to become guardians of the site under s.2. All offences and penalties were to be dealt with under the Summary Jurisdiction Acts with the right of appeal to a court of general or quarter sessions (s.7). S.8 gave a description of the method of holding land. S.9 gave a description of owners in great detail. S.10 outlined the power to add to the Schedule by Order in Council monuments of a like character. S.11 gave definitions and title of the Act. This was followed by the Schedule listing the sites and monuments.

The first inspector appointed was General Pitt Rivers, but by the time of the 3rd annual Congress of Archaeolgical Societies in 1889 he had begun to feel that the Act was failing to achieve its intended aim. The voluntary nature of the act appealed to the more enlightened owners of the scheduled monuments, but as there was no power of veto attached to monuments not in the care of the commissioners and the government, having one eye on the treasury and the other on the rights of land owners, was reluctant to take on more sites or to act against those who were careless or "who wished to destroy", the General felt that his hands were tied. He felt so strongly about his inability to act that he offered to resign but then consented to continue in the post without pay. It was at about this time that Sir John Lubbock proposed another bill, extending the 1882 act to include monuments of a later date. However the tone of the bill was still to be permissive rather than active. Pitt Rivers felt that much more could be done to protect historic monuments, primarily medieval ones. At the draft stage of the first bill the then first Commissioner of Works had approached the Society of Antiquaries for a comprehensive list of monuments for the whole country, this had been completed but not used. He also felt that it was necessary to include a power of veto, although as acts of vandalism were not common it would be unfair, and expensive, to alienate parts of estates containing monuments. A problem raised by Dr Cox at the Congress was that caused by the cult of the romantic ruin. Monuments such as Rievaulx Abbey were left covered in ivy to gently decay instead of being maintained. The Dean of Winchester was more forceful; he stated that: -

"The state was the true owner, and should preserve them for

the people and for the nation at large. The state ought to

have the power instantly to step in, and check such action".



It was felt that medieval monuments would be easier to protect as the owners would more readily see the need to protect them, unlike the mounds and ditches of the prehistoric past. At this point it is worth noting that a split was developing between national and local societies. At national level the trend was toward greater state control (see above) but societies such as the Cambrian were more concerned with the recording of sites by excavation for research purposes. It was, as stated by J. Romilly Allen in Archaeologia Cambrensis 1890, the function of the local societies to 1) preserve archaeological material and 2) utilise that material for the benefit of the public. This could only be achieved by understanding the artefacts from the past in the proper context. The emphasis was on conservation by record. It was already understood that a split between professional archaeologists (the inspector) and amateurs (the societies) was inevitable but both had an active role to play, one to protect national monuments from vandalism and the other to excavate and produce reports for the edification of the population. Financial assistance from the government would of course be appreciated. The definition of amateur in this context was the skilled archaeologist who did not obtain his income from archaeology, a good description of the first inspector at this stage of his career. It was also felt that the best form of protection was that provided by a well-informed and concerned public.

General Pitt-Rivers continued to serve as unpaid Inspector of Ancient Monuments until his death in 1900, when he was succeeded by his assistant, Fitzgerald a brilliant excavator and recorder.



As with the English legislation, the origins of the American legislation can be traced to the work of a small number of people, principal among whom were Henry Morgan (1818 to 1881) and Adolph Bandelier (1840 to 1914), both anthropologists. The prime mover in congress was the Massachusetts senator George F. Hoar. The United States had been setting areas aside for conservation since 1832 (Hot Springs, Arkansas) mostly as part of reserves. The process was clumsy, involving an act of congress as well as presidential approval for each area under consideration. The United States had very few ancient buildings to conserve in comparison with England, but had considerable numbers of untouched archaeological sites. During the latter part of the nineteenth century many of these were subject to robbery for the acquisition of artefacts, to feed a rapidly expanding commercial market. Senator Hoar brought this to the attention of the federal government in 1882 (Lee 1970). There was no argument that legislation was necessary, but the principal objection was that there were large tracts of land already controlled by the federal government and that it would be impossible to provide adequate protection. This was not seen as an insurmountable problem by Bandelier, Morgan and Hoar (all of whom trained as lawyers at university). Bandelier and Morgan as anthropologists considered it essential to conserve as much of the history of the original inhabitants of the United States as possible, principally for the purpose of study. Bandelier thought it of immense importance to white Americans that they should understand the history of the Indians. Morgan gave the same level of priority to the understanding of the development of early cultures, his principal interest being in genetics and cultural evolution. During the period 1882 to 1906 several important sites were afforded protection using the existing legislation. The protracted debate led to the Antiquities Act of June 8th 1906, which was designed with three particular functions in mind. First, to establish public policy regarding archaeological resources; second, it gave the President the power to set aside major areas of archaeological interest for both preservation and interpretation. Third, it established archaeology as a profession. No excavation would be carried out on federal land without license, and then only by a competent archaeologist supported by academic institutions such as museums or universities. Section three of the act gave detailed requirements for any body carrying out excavations on federal land, insisting that not only at the point of excavation were high standards to be involved but also strongly indicating that all artefacts recovered should receive good and sufficient protection. In short archaeological resources were to be protected and utilised for the benefit of the population and not to be considered as a commercial commodity to be exploited. In effect it gave the archaeological resource a heightened public value. In 1935 the act was further strengthened by the Historic Sites Act. This extended the protection afforded by the Antiquities Act to private land and enabled the government to provide support for private initiatives from federal sources. In the 1950's, as a result of post war development, many unprotected sites were lost, which led to the National Historic Preservation Act of 1966. This extended the range of the previous legislation by including historic sites of local importance. Section 1 (a) (4) states that: -

"the preservation of this irreplaceable heritage is in the public

interest so that it's vital legacy of cultural, education, aesthetic,

inspirational, economic and energy benefits will be maintained

and enriched for future generations of Americans.



Section 1 (a) (5) goes on to say: -

[I] n the face of ever-increasing extensions of urban centers,

highways, and residential, commercial, and industrial

development, the present governmental and nongovernmental

historic preservation programs and activities are inadequate

to ensure future generations a genuine opportunity to appreciate

and enjoy the rich heritage of our nation.



Section 2 (1) goes on to say that: -

"in partnership with states, local governments, Indian tribes,

and private organizations and individuals to use measures

including financial and technical assistance, to foster conditions

under which our modern society and our prehistoric and historic

resources can exist in productive harmony and fulfill the social,

economic, and other requirements of present and future generations".



The emphasis here is on sustainable development of the archaeological resource and includes all bodies from federal to individual. The National Historic Preservation Act brought into existence the State Historic Preservation Officer to provide administration and support. Section 106 of the Act required that all persons involved in federal undertakings identify the effect of the undertaking on all archaeological and historic sites involved. This has resulted in hundreds of millions of dollars of government funding being used to pay for tens of thousands of archaeological investigations. As regards the system for the protection of artefacts, the Archaeological Resources Protection Act was introduced. This makes it a felony and

a misdemeanor to excavate, remove or sell or even possess artefacts without the

required permit. The final act to consider is the Archaeological Resources Protection Act (1979). By the 1970s Archaeologists had noted that the existing legislation was failing to dissuade commercial looting of sites, primarily due to the low level of fines and the problems identified in Diaz[11] The judgment of the Court was that the Antiquities Act was weak in that: -

by use of undefined terms of uncommon usage,

is fatally vague in violation of the due process clause of the Constitution.



The fact that the maximum penalty was $500 and/or 90 days did not help. The Archaeological Resources Protection Act entered the House of Representatives on the 1st of February 1979; it was in the Senate on the 26th and was approved on the 31st of October. The criminal law element came into immediate effect and the civil enforcement followed on 6th January 1984. Not only did the Act cover all Federal land but could be used against persons in breach of Federal, State and Local criminal law for instance in removing artefacts without a license. According to George S Smith, the National Parks Archaeologist for the Southeastern United States: -

It worked fast and it worked well, a $100,000 fine

and up to five years is a good disincentive and

we have a reputation for prosecuting.[12]





The first major case after the 1979 Bill was enacted was Gerber[13], which effectively demonstrated the power and authority of the new legislation. His defence was that the act took place on private property and therefore fell outside the federal legislation. The Court, by way of response, said that trespass was a misdemeanor under the State criminal law, which placed it within Federal jurisdiction and that under the Federal Act he was guilty of a felony, and sentenced him to twelve months imprisonment.

In England the driving force behind the legislation was possibly the greatest pre historian of his time from its inception as a bill the Ancient Monument act spacificly targeted pre historic sites on the face of the evidence available it is reasonable to say that it was a deliberate choice Lubbock was an expereanced polatition well awere of the problems associated with a private bill and knew what he wanted to acheave and part of that was the recognition of the study of prehistory not as a hobby for gentalmen but as a scince







Chapter 3

1900 to 1945



During the period of the early development of the legislation, to 1914, England was undergoing a series of dramatic changes. The move from a rural to an urban economy was well in hand by the beginning of the period and the population was rapidly expanding due in part to legislation leading to improvements In health and working conditions. This in turn led to increasing demands for more housing and factory accommodation.

On the political front the Empire was seeing major incidences of unrest, principally in Afghanistan and South Africa. This in turn was applying pressure for increased expenditure, principally for the Army. Closer to home, the Irish Question remained unanswered.

Scientific development led to the massive development of a railway system, which in turn led to a building programme the extent of which had not been witnessed in Britain since the early days of the Roman occupation. This placed travel firmly into the realm of the possible for a rapidly expanding class of artisans, who also had, due to legislation, better access to free time and education.

The cumulative effect of the above was not only to severely limit Parliamentary time to fully discuss archaeological protection legislation, but also to dramatically increase the need for it. One positive effect was that the increase in leisure time and educational opportunities had a dramatic effect on the membership of archaeological and antiquarian societies and due to the nature of legislation in this area there was no shortage of valuable practical expertise.

The Ancient Monuments Protection Act 1900 went some way to improve the situation left by Pitt-Rivers. S.1 gave power to the Commissioners to become guardians of monuments that they considered of public interest due to their historic or artistic value but only with the owners consent. It also gave similar powers to the new county councils, they could now purchase or become the guardians of ancient monuments in the county or adjacent to it but the money to maintain them was to be from the county rates (s.2 (1)) It also gave them power to prosecute under s.6 of the 1882 Act (which now became s.2 (2) of the 1900 Act). Voluntary contributions could now be accepted and financial arrangements entered into with the owner voluntarily, of course. The Commissioners and the councils were empowered to transfer sites between themselves (s.4), access to the sites owned under the Act were to be open to the public and those over which they had guardianship were to be open with the consent of the owner (s.5). The definition of "monument" was changed to mean any structure, erection or monument of historic or architectural interest (s.6). Much of the 1882 Act was incorporated, under different section numbers, into the 1900Act. A minor oversight in the new Act was corrected by the AMPA of 1910 when s.4 of the 1882 act was also incorporated into the 1900 Act, at the instigation of the Royal Commission on Ancient and Historic Monuments (established in 1908).

At a conference in Cardiff on July 23 1912, the 1913 bill was discussed at some length. An important point made was that public interest had been aroused and involvement had been increased. Societies were now working with an informed public. Standards in professional archaeological excavation were improving as was the rate and amount of publication. The 1900 Act had given powers to the county councils to own or maintain sites (s.2) and access to the general public. And now in the new bill the government was to give both itself and the councils more power to protect ancient sites. There were in fact three bills before parliament in 1913, one by the government the second by Lord Southwark and the third by Lord Eversley who was also involved with the National Trust and in an attempt to save Stonehenge for the nation. A joint committee of both Houses of Parliament was considering all three bills.

A key feature of the final bill was the Preservation Order (s.6 (1)). It had effect for 18 months unless confirmed by Parliament and if not so confirmed it could not be reintroduced for another 5 years (s.6 (3)). At any time that the order was before Parliament a petition could be presented against the order and costs could be claimed for rights "interfered with" under the Parliamentary Costs Act 1865 against the Commissioners. But still this raised once more the spectre of state interference with the rights of the occupier to the free enjoyment of his land especially when joined with open access to the general public (s.13) (this relates only to monuments acquired after the act but see s.13 (a) and (b)). Much was made of this by the Earl of Plymouth. He posed two questions: 1) how far should the rights of private owners give way or be sacrificed to public advantage? and 2) How far should the primary use of a building outweigh historic, aesthetic or archaeological considerations? He illustrated his point by describing the possible loss of Stonehenge to an American millionaire and the good work done at Alnwick and Arundel castles and by Lord Bute at Castell Coch. These noble lords might well have been prevented from improving their castles due to provisions in the present bill. He also mentioned the fate of some churches but failed to mention that both categories were specifically exempted from the ancient monument legislation. Much was also made of the point that the majority of landowners were proud of their heritage and only wanted sound advice not interference from the state. It was stressed that care must be taken not to alienate such an important and worthy group by hasty legislation. All of these points had been used to defeat important clauses in Lubbock's original bill in the 1870s. It was also felt by the noble lord that landowners impoverished by their commitments should be aided by the state to conserve monuments in their care. The emphasis was on management by consent but with little or no pressure to comply. Nothing was made of the fact that much of the loss of sites was due to new urban developments and changes in farming practice.

The Ancient Monuments Consolidation and Amendment Act 1913 was a landmark in historic landscape legislation not so much for what it did but in how it did it. It was, in comparison with previous Acts, long and adopted a style that was both more detailed and technical. A complicating factor was that it used some old terms in new ways before it redefined them, principally "Monument" and "Ancient Monument.



The outbreak of war in 1914 not unnaturally led to a lessening of visits to historic sites due in part to restrictions on movement - only 25% of normal visitor numbers in the case of Stonehenge. The Commissioners, not being able to visit sites as much as they should, soon found other work.

In the case of Wales a start was made on an analysis of historic documents. Starting with the Tithe maps and schedules, a legacy of the 1836 Tithe Commutation Act, they then went on to an analysis of field names, marking them on the Ordnance Survey six-inch maps. This valuable work had two effects; it saved many place names from loss through the increased use of English and also led to the identification of a considerable number of new sites. It also reduced the work of the local societies, effectively diminishing their active role in the eyes of some of their members. The increased knowledge did not automatically lead to a corresponding increase in protection. Two examples taken from an Archaeologia Cambrensis report will serve to illustrate this. The roof of a disused building (Capel Galltgoed) was removed and the old beams, said to be in good condition with much carving, were used for fence posts. The second case concerned the deliberate destruction of a Bronze Age burial mound by two council workmen on the instructions of the road surveyor.



The inter-war years saw a drive to improve housing. Many late nineteenth century slums, the building of which had caused so much damage to the built heritage, were now cleared. Cheap transport made it possible to construct major housing developments, such as those described so eloquently by John Betjeman in Metroland, at some distance from the place of work, placing a heightened demand on Greenfield sites. As usual, farming was in state of flux, both economically and terms of mechanisation, adding yet more pressure on the built environment. A tractor is less inclined to go around a monument than is a horse. It was time for a new Ancient Monuments Act.


On the 1st September 1931 the Cambrian Society was addressed in Lampeter by Mortimer Wheeler, one of the country's leading archaeologists. His definition of a professional archaeologist was one who did the job properly, paid or otherwise. Archaeology was an occupation followed for love not personal gain. One of his aims in life was to make archaeology, through the medium of local societies, a popular pastime with the highest standards. An outspoken person with firm opinions he formed a direct link with the gentleman archaeologists of the nineteenth century His address marks a mid point in time of the period under examination. Many of the problems affecting archaeology and its related legislation would have been familiar to Lubbock and are still recognisable today. Wheeler was speaking three months after the passing of the 1931 Act and opened his remarks with a reference to the number of monuments now listed in Wales. Welsh farming then as now was in depression and money as usual was in short supply - a past present and future problem. Interest in the past was increasing and more people were visiting the countryside, many by car. In many ways this was good but then as now, it posed problems. The historic landscape is sensitive to the pressure of a visiting population not only from litter, but also from the wear and tear on the fabric of the site. It is also subject to petty vandalism. For a modern problem site take Crickley Hill near Gloucester with its litter, minor vandalism and worn pathways. The long running excavation of this site was in fact terminated due to the destruction of the site hut - and that is in a nature reserve and park. Even the bungalow was, already in Wheelers day, a threat to the landscape. Wheeler then went on to quote at length from the 1st volume of Archaeologia Cambrensis, 1846 on the need to study the past, highlighting the role of the society and its place in education: -
.he must not only be fond of studying and preserving
objects of antiquity, but he must know how rightly to do so."

as this is the proper function of public societies. The author then went on to call for state action. One of the failings of state intervention is that without proper thought it can have unforeseen side effects, as illustrated by the case of the Pembrokeshire Association. Until 1913 it led in its work of conserving local sites but when the Act was passed, it felt that much of its work would pass to others and became discouraged.
S.12 had brought into being the Ancient Monument Board for Wales and its work of producing lists of sites for scheduling included an analysis of historic documents, a study once the preserve of the local societies. But knowing where a site was did not afford it protection.

The Housing Act 1923 was noted for affording protection on account of

the special architectural, historic or artistic interest attaching

to a locality, it is expedient that with a view to preserving

the existing character and to protect the existing features

of the locality. (Journal of Planning Law 1998 p 203)



Under the Town and Country Planning Act 1932 the term amenity was introduced and provision for Building Preservation Orders was made, and borrowing from the Ancient Monuments Act 1913 the powers of compulsory preservation were added. It did, however, contain one major deficiency in that it did not provide for a method of listing buildings of special interest. A further point worth considering was that, unlike an archaeological site, destruction of a building without consent was still not a criminal offence.



The Town and Country Planning Act 1944 introduced the concept of listed buildings. Section 43 (1) enabled: -

a preservation order to prohibit alteration or extension

of a building in any way which was specified in the

order as well as its demolition. (Mynors 1999).



For the first time, unauthorised works became a criminal offence with a fine of up to £50. Under Section 44(7) the court could order payment for the restoration of the building. Section 43(9)(10) gave the authorities power to acquire buildings in need of repair or management. Given the date of the Act, it is not surprising that it was rarely used, excepting in the town of Winchelsea, probably the only urban area in England not to suffer major bomb damage. Both of the above Acts became obsolete in 1947 with the introduction of the Town and Country Planning Act of that year. One of the oddities of this Act is that it made the Building Preservation Order appear to be only applicable to the modification of a building and not to its destruction. Also, the act did not apply to Ireland (s.7), which had acquired an Act of its own in 1892.



Ireland had in fact been developing its own way of conserving antiquities for some time. The inspiration for formal action was the disestablishment of the Irish church in 1869. It was noted that many of the sites belonging to the church were no more than ruins but had great historic value. In 1870 the Secretary of the Commissioners of Public Works in Ireland was empowered to hold on trust 137 monuments and maintain them. The schedule of the 1882 Act added a further 18 ancient monuments to the list. In 1892 an Amending Act to the 1882 Act gave the Commissioners power to use money given to them by the Irish Church Act to maintain all monuments in its care. The Local Government Act of 1898 gave the newly formed county councils the power to maintain monuments in their areas of control. The next act to have an effect on ancient monuments in Ireland was Wyndham's Irish Land Act 1903. This was almost entirely negative. There was not such a strong history of local archaeological societies in Ireland as in the rest of the kingdom and when the new land owners took possession, anything that was not required tended to be removed, by plough, or in some cases more violent methods. To be fair much of the blame for this wide spread destruction must lay with the surveyors of the Board of Public Works who had little experience of antiquities and even less interest. If they told a farmer that a site was of no interest who can blame the farmer for removing it?

After 1922 the north and south developed separately and at their own pace. In 1926 the northern government introduced a new Act very much like the 1913 Act in England. Here the Ministry of Finance acted as guardians with an advisory committee to help them. The commission was to consist of representatives from the Ministry of Education, the Universities and the leading societies. The owner of a monument on the list had to give two months notice of interference with the monument, giving the Ministry time to issue a preservation order. Such an order was to run until it was revoked. Contrast this with the English Act of 1913 where the preservation order only afforded protection for 18 months unless confirmed. Also under the 1926 Act in Northern Ireland the reporting of all finds was made mandatory under penalty of fine or imprisonment.

The south waited until 1930 and then went much farther. The Ministry of Finance acted as guardians with the Commissioners of Public Works acting as their agents. They then added the power of compulsory purchase and the power to move a monument to a place of safety - a forerunner of St Fagans? It was made an offence to disturb the soil by ploughing or digging near the site. All finds had to be reported to the police and archaeological excavation could only take place after a licence had been issued by the Ministry of Education. At the present time the applicant, with a degree and or extensive field experience is subject to interview by a board consisting of a licensed field archaeologist, an academic archaeologist and a member of the civil service.

















Chapter 4


The period directly after the Second World War saw a massive resurgence of building. Much structural damage had occurred in urban centres, which afforded the opportunity, not to rebuild as happened in many European cities, but to clear and start again. The emphasis was on new design for new buildings, a trend that was to continue until at least the mid-1960s. Towns rapidly expanded, but unlike the previous period of development, now the car was king. This in turn called for an extensive redevelopment of the road systems including the building of a motorway system.

The attitude of the developers was one that was strangely reminiscent of the Victorian period. Economic considerations were paramount and the old was seen as an impediment to be brushed aside. It was felt by the government of the day that it should be seen as new, young and vibrant. Developments of all types were put in motion at a startling rate. The important thing was to be seen to be doing something.

Farming, or to put it in modern parlance, agribusiness, was also entering into the spirit of the age. Larger and more efficient machinery called for larger and more efficient fields. In some areas of the country field boundaries hundreds if not thousands of years old, disappeared with the speed of morning mist. Deep ploughing for root crops became the order of the day. It left large areas of the more fertile countryside resembling nothing more than a re-landscaped opencast pit with all the archaeological and natural integrity of a municipal park. Once more, after the event, the government acted.



The Historic Buildings and Ancient Monuments Act of 1953 was the first and last attempt at a built heritage act. Part I dealt with historic buildings, a term that was not defined, and brought into existence the three Historic Buildings Councils (England, Scotland and Wales) and allowed for the making of grants to assist in the maintenance and repair of buildings of outstanding architectural or historic merit. It also recognised land or objects in association with the buildings as being significant. A further, and significant, development was the facility for the Minister to make grants available to the National Trust for the purpose of purchasing such buildings. Ancient monuments were provided for in Parts II and III. Part 3 of the 1913 Act was revised and amended in regard to preservation orders and interim preservation notices, and Part III made minor adjustments to the 1913 and the 1931 Acts. Historic buildings received further protection through the Civic Amenities Act 1967, more concerned with preserving and enhancing the character of an area. The Town and Country Planning Act 1968, which reinforced the concept of a listed building extended the meaning to include objects attached to it or within its curtilage. There were a series of other planning and conservation acts throughout the period, but the next and final one of primary concern was the Ancient Monuments and Archaeological Areas Act 1979.

This, as can be seen from the title, referred only to archaeological sites and areas. Possibly its most important element was the requirement for the Secretary of State to produce a Schedule of Monuments (a term now fully defined in s.61 (7) of the Act), much wider in scope than the previous Acts and any works to be carried out to a site on the Schedule could only be authorised by the Secretary of State and not the local planning authority. The body of the Act concerned itself with replacing the 1913 and 1931 Acts and Parts II and III of the 1953 Act. Another, potentially formidable, device introduced by the Act was areas of archaeological importance, but unfortunately this has been used on less than a dozen occasions and then principally within the urban context.

The Act, as with its predecessors, suffered from a problem of interpretation. It was at a considerable disadvantage in that the case law concerning archaeological sites is exceedingly slim. The legal understanding of a word is usually easy to identify and consistency of use is thus maintained. To address this deficit it is necessary to look elsewhere for guidance. The two of most significance to the built landscape are PPG15, Planning and the Historic Environment dated September 1994, and PPG16 for England, and for Wales, Planning Guidance (Wales): Planning Policy, May 1996, and WO Circ. 60/96[14]. It is also worthy of note that the wording of the Welsh policy document is firmer in its application than the English one.

Unfortunately, the power given to the Secretary of State to schedule under s.1 is not a requirement, unlike the duty to list buildings of note under the Planning (Listed Buildings and Conservation Areas) Act 1990. This has tended to limit the number of buildings that are both listed and scheduled. With planning, the criteria for assessing the desirability of scheduling is non statutory but was enshrined in case law (Rose Theatre (1990). Schiemann J went to some length to outline a range of what he considered to be relevant factors that the Secretary of State was entitled to consider, many of which were of a type not appropriate to an application for scheduled monument consent[15], and not entirely relevant to the protection of a finite resource. He then refused leave to appeal on the grounds of lack of standing (locus standi)[16]. This pre PPG 16 case raised more issues than it resolved. Permission was granted; it was not known that an archaeological site of national importance would be exposed, on discovery the site was proposed for scheduling under the Ancient Monuments and Archaeological Areas Act 1979. This was refused by the Secretary of State; had he done otherwise scheduled monument consent would have been needed before the development could continue, and if refused the question of compensation would arise and an appeal by way of judicial review would be lodged. Prior to the hearing the developers had entered into a planning obligation with the authority with the idea of protecting the site in situ at a cost of some ten million pounds, the Secretary of State then scheduled the site. Moore[17] uses this case to illustrate the advantages of an obligation over an imposition of conditions, under the Town and Country Planning Act 1990 s.106, or more accurately the Town and Country Planning Act 1971 s.52 at that time, "voluntary cooperation is preferable when the objective sought is physical preservation-" for good reason and is in line with the general requirements and aims of environmental and nature conservation at both national and international level and the opinions of leading planning lawyers carry weight. But the question to be asked is, is it a positive move to promote conservation in situ of an archaeological site by radically changing its environment? One recommended method is to cover the site with a deep layer of soil, but under the 1979 Act, tipping waste of any sort on to an archaeological site is forbidden, not least because of the damage caused by increased pressure on the contents of the site. Capping with concrete, another recommended option, can be shown to change both the drainage pattern and the ph of the soil. Both of these events can cause considerable damage.

The available texts on the subject indicate that this is the present state of the law, but in two unrelated cases in 1997 Rose Theatre was ignored. In the first, R v North Somerset District Council, the judge, when examining standing, quoted extensively from Mr. Justice Schiemann in ex parte Rose Theatre. His principal concern was standing. In his opinion it was the proximity of contact or relationship that was fundamental. The fact that a person visited a place on a regular, frequent basis gave standing, or if a person were a member of a properly constituted body with interests in the subject matter to such a degree that the involvement could be considered personal, then that too indicated standing. He then respectfully declined to follow Mr. Justice Schiemann.

In R v Somerset C.C. ex p Dixon [1997] J.P.L. 1030, Mr. Justice Sedley also declined to follow Schiemann. His opinion was that the threshold to be set, at least at the application stage, should be no higher than that necessary to deter a busybody from abusing the system. These two cases have relevance for two reasons; firstly they cast doubt on Rose Theatre as good law. Secondly, specifically in regard to standing, if Rose Theatre had occurred after the above-mentioned cases, then following the normal rules of precedent, judicial review would have been allowed. Of course, one can only speculate on the result of that particular action, but the least that could be said for it is that it would have allowed archaeological groups to state their objections.







A form of archaeological site protection that is sometimes overlooked is that provided by the Environment Act 1995. S.97 affords protection to hedgerows, primarily as linear nature reserves but s.97 (8) includes "features of archaeological or historic interest" as part of "environmental conservation". Unfortunately "interest" in this case needs to be national as defined by English Heritage or, in Wales, Cadw. Its great advantage is that it affords protection in areas that are exempt from many of the limitations imposed by the Town and Country Planning Act 1990 through the effect of s.55 (2)[18] This power has been extended and clarified by regulation.[19]

The concept of the boundary is only fractionally younger than the concept of rights in land. Some of our older hedgerows are described in Anglo Saxon land charters. Many of these features follow the line of prehistoric, Roman and medieval roads, banks and ditches. The relevant parts of the regulations are; if the hedgerow is 1[20]) the boundary of a pre 1850 parish or Township, or, 2) incorporates a scheduled ancient monument, or, 3) is associated with such a site, or, 4) forms the boundary of a pre 1600AD estate, or, 5) is recorded in the relevant documents; then it will receive protection under the regulations. Unfortunately protection is only afforded to hedgerows recorded before the date of the regulations (24th March 1997). The regulations came into effect just before a general election and the new government lost little time before reviewing them. On the 29th May 1997 Michael Meacher the Environment Minister announced a review of the Hedgerow Regulations 1997. The result of the review was the recommendation that the proposed criteria should be simplified and would be considered important if it were related to a highway, a historic land unit, an archaeological site or feature or had been in existence before 1870 and formed part of a system that was substantially complete. It also made other recommendations more concerned with ecology.







Developments in England were not taking place in isolation; as has been said in passing, other European countries had developed strategies to conserve their heritage. Sweden had taken such steps in 1666 and in the next century Portugal and Germany had done likewise.

A significant work on this point was produced by G. Baldwin Brown, published in 1905 (The Care of Ancient Monuments). The title is somewhat misleading as it concerns itself principally with living buildings that is with buildings that are either still occupied or capable of occupation. In many respects it still serves as a useful guide for good practise in building conservation but if used as a model for heritage conservation it tends to relegate archaeology to the Second Division as happens in Harvey, J. Conservation of Buildings (1972 John Baker, London.). Unfortunately this misuse of a valuable work is continued in John Delafons Politics and Preservation (1997 E. and F.N. Spon London) subtitled A Policy History of the Built Heritage 1882 to 1996. This particular publication further reinforces the idea that heritage is to be equated with built in the architectural sense by quoting (from Harvey 1972) a decree of Louis X of Hesse 1818: -

"...whereas the surviving monuments or architecture are

among the most important and interesting evidence of

history, in that from them may be inferred the former customs,

culture, and civil condition of the nation, and therefore their

preservation is greatly to be wished, we decree as follows:





One. Our higher college of building is charged

with bringing all the discoverable remains of ancient

architecture in the grand duchy of Hesse, which are

worthy of preservation on historical or artistic

grounds, into a correct inventory wherein their present

condition is to be described and the ancient works of art

to be found in them, such as paintings, statues and the like,

are to be noted.



Two. For the compilation of the historical part of

this inventory the aforesaid college is to invite such as are

most learned in the history of every province to collaborate

in this patriotic purpose, and these are to communicate

to that end the necessary information from the archives.





Three. The most distinguished of these works, or the most

ruinous, are to be completely and accurately surveyed

and the drawings deposited with their description in our museum.



Four. Our higher college of building is hereby charged:

to lay before us the inventory of these buildings

considered worthy of preservation or illustration for our approval,

in order to put in hand the preservation and repair of the same

in conjunction with the various authorities; and to give us

the appropriate advice thereon.



Five. If it should seem necessary to put in hand alterations

of one or other of these buildings, or to demolish one entirely,

this is to be done only with the previous knowledge of the said

college, and in appropriate cases after it has obtained a

supreme approval.



Six. If in the course of excavations or on other

occasions antiquities are discovered, our offices are to

take care that if possible they should be preserved,

and notice thereof is to be given immediately to our

higher college of building or to the directorate of our museum.



Seven. It is the duty of all public authorities

to take the greatest possible care of the monuments

made known in the aforesaid inventory to which end

the same shall be printed and communicated to them."





The claim that this document demonstrates that some European states were in advance of England in 1882 in terms of conservation is somewhat misleading. It closely resembles the desired state for the conservation of buildings but its reference to archaeology is slight. On examination of section six one does not see a model for the 1882 act, but it bears a striking similarity to PPG 16. In fact if one takes section six and PPG16 together, section six tends to focus the mind on the weakness of the current guidelines. "If antiquities are discovered " (not when) "our offices are to take care that if possible they should be preserved". This gives much scope for not preserving if as happens in the present day they happen to get in the way of a road or housing development.

What the document does show is remarkably forward looking treatment of buildings that bears up well in comparison with the later English Historic Buildings Acts even to the extent of requiring a detailed schedule of fixtures and fittings.



The European influence can be seen at work in G. Baldwin Browns work with the Society of Antiquaries to establish a government organisation concerned with the conservation of monuments. This led in 1908 to the setting up of the Royal Commission on Ancient and Historic Monuments (RCHM) and it was also influential in the development of compulsory powers in the 1913 Ancient Monument Act.



Conclusions

During this investigation it soon became apparent that many of the people involved in developing the UK legislation were only concerned with developing methods of protection relating their own very specific interests. Lubbock, for instance, was the most eminent pre-historian of his time and had a desire to demonstrate that there was a higher level of civilisation in the ancient Britons prior to the Roman invasion. Pitt-Rivers on the other hand had wider interests in terms of time span but was principally an excavator who was also concerned with the rights of the owners and occupiers. Part of his estate covered Cranborne Chase, an area justifiably famous for its wide range of archaeological sites. William Morris on the other hand was much more concerned with the visible. An artist and designer heavily influenced by the mediaeval period he was deeply concerned with the "modernisation" or replacement of public buildings. He was also deeply concerned with the loss of more "rustic" buildings commonly associated with villages and the smaller market towns.

In the United States the principal motivation came from anthropologists who used archaeology as one of the many tools available to them to obtain an understanding of the past. They were effectively engaged in fossilizing the archaeology of the present as a paradigm for the societies of the past. The emphasis was on the conservation of the areas of historic interest not on specific sites.

In both jurisdictions the activities and interests of the early participants set the trend for future developments.

The development of law in Ireland was, to start with, in line with England but, looking toward America, it rapidly became less permissive although it was still site based. When the principal of licensing was introduced it effectively shut out amateur involvement.

The European influence can be seen at work in England. From its inception the overriding motivation was the conservation of the visible and much good work has been done to conserve a wide range of structures. However, by concentrating on this one aspect the archaeology has not so much been relegated as sealed from sight at least with regard to those sites which have been scheduled.

Sweden for instance has passed legislation that effectively makes all archaeology, visible and invisible, known and unknown, the property of the state and in common with most of Europe excavation is by licence only. In general, European legislation and initiatives at both state and EU level are worded in terms of the built heritage environment and are concerned with conservation and use and are applied to all monuments without the distinction between structures and archaeology seen in England.

The use of the term built heritage landscape may be accurate when used in connection with an eighteenth century park but if applied generally to, say, an area such as Tregaron Bog, it becomes meaningless and leads one away from the archaeologically and historically important points for consideration, such as the bio- archaeology of the area etc

Most if not all of the legislation has been reactive and passive rather than proactive, at least in the common law countries under review, whereas in Europe the legislators saw that there was a need to protect the heritage landscape and developed relevant strategies in advance.

An inherent difficulty with the English and Welsh legislation is that there is in practice no clear hierarchy of control and enforcement. To give just one example from Wiltshire; damage to a scheduled monument was reported to a local museum. The information was immediately passed to the County Archaeologist, who in turn reported it to English Heritage. After several weeks of silence, the County Archaeologist again contacted English Heritage, who said of course nothings been done; we assumed you were doing it. The archaeologist, quite rightly, indicated that it was their responsibility to prosecute. The response was that it was the archaeologists responsibility to prepare the prosecution as he knew the details better. By this time there was almost certainly no chance of a successful conclusion to the case and it was quietly dropped. This is not an unusual situation. When I contacted English Heritage direct, I was advised by the Legal Department, led by Howard Carter, that the only legal questions that would be answered would be those that were in writing and then only if it was considered to be in the interests of English Heritage to do so. On further investigation, I was advised on more than one occasion by middle managers at English Heritage, that it was an unwritten policy not to prosecute. This places the burden on County Archaeologists. The situation here is also confused, but for a different reason. A considerable number of the ones contacted did not have an extensive knowledge of the law. It is a fact of life that in England and Wales not one university archaeology department includes a course on Heritage Law. One, extremely competent and well-known County Archaeologist, when discussing a planning problem, was asked why dont you ask the County Planning Department? The response was I have, they dont know either.

At a slightly different level, within the last twelve months, an amateur archaeologist reported the vandalism of a scheduled monument to the police station. The police officer said what has it got to do with us? On being told that it was an offence under the 1979 Act, he apologised and said Im sorry, Ive never heard of it.

In the United States, no Federal Officer involved in the administration of historic sites would be at a loss regarding the legislation, although it is also true to say that it is not taught as a standard subject to archaeologists. George Smiths attitude is fairly common :-

The legislation is an extremely powerful tool

for the protection of archaeology, but to make

it so I had to spend two years learning how to use it.


The above comments with regard to the English legislation would indicate that it is not the legislation itself that is principally at fault, but the problem lies in its administration. On further investigation, this thesis received further confirmation. A practising County Archaeologist and the Training Officer of the Institute of Field Archaeologists, the guardians of standards in British Archaeology, said on questioning, I think its important that they (archaeologists) know about common law. When pushed further, he responded by saying; why do they need to know about the statutes?
Two leading practitioners in conservation law, Charles Mynors and Neil Cookson, both stated that in their opinions neither English Heritage nor the County Planning Departments really understand the legislation, nor do they know how it works.

A similar argument applies to PPG16 and its Welsh equivalent. Here the problem is not so much a lack of knowledge as one of weighting. On this point, the eminent Cambridge Professor of Archaeology, Lord Colin Renfrew said :- you really must look at PPG16, it wont bear close examination.

The difficulty here is the value placed upon the resource. The invisible and poorly understood (by the general public) non-renewable resource that is the raw material of academic research is grossly under-valued. In media terms, it lacks consumer appeal. To a certain extent this has been addressed by some television programmes, but the increase in value is so far only marginal. Even Tony Robinson cannot turn archaeology into fluffy bunnies.

The increasing importance of European initiatives also gives cause for concern. On discussing the preparation of the advice and guidance to be put before the committee directly involved with the formulation of the new ICOMOS protocol on heritage, the head of the European Archaeology Association Secretariat was surprised to discover that England has a different system of law and is a common law not a civil law jurisdiction.

In the last years of the nineteenth century, archaeology justified itself as a science through the use of law. The argument that has been presented and proved through this dissertation is that now, archaeologists should take that same law and learn how to use it.






Bibliography


Berry, I.Q. & Brown, edManaging Ancient Monuments

Card, R..Law for Estate Management Students (1994)



Carver, M.Sutton Hoo (1998)



Chitty, Gill...Training in Professional Archaeology

(English Heritage 1999)

Cookson, Neil Archaeological Heritage Law (2000)

Delafons, J.. Politics and Preservation (1997)

Francis, Andrew Restrictive Covenants and Freehold Land

Greenwood, B.(ed,)Planning Law (1997)

Hunter, J. & Ralstron, I. Archaeological Resource Management in the UK (1997)

Kelly, FEarly Irish Farming (1998)

Kramer, LEC Treaty and Environmental Law (1998)

McEldowney, J.F. & McEldowney, S.Environment and the Law (1996)

Moor, V..A Practical approach to Planning Law (1997)

Morris, D.R.The Washing of the Spears (1981)

Mynors, CListed Buildings Conservation Areas and Monuments

3rd ed. (1995)

Pugh-Smith, J. & Samuels, J.Archaeology in Law

Rodgers, C. P. (ed.)..Nature Conservation and Countryside Law (1996)

Sands,Principles of International Environmental Law, vol.1

Suddards, R. W. & Hargreaves, J.MListed Buildings, 3rd ed. (1996)

Winter, MRural Politics (1996)







British Archaeology June 1998

Planning for the Past vol III 1995 English Heritage

Review of the Hedgerows Regulations 1997 DETR





Legislation










Ancient Monuments Protection Act 1882



Ancient Monuments Protection Act 1900

Ancient Monuments Protection Act 1910



Ancient Monuments Consolidation and Amendment Act 1913

Ancient monuments act 1931

Historic Buildings and Ancient Monuments Act 1953

Ancient Monuments and Archaeological Areas Act 1979 -

National Heritage Act 1980

National heritage act 1983

Building Act 1984
Care of Cathedrals Measure 1990

Planning (Listed Buildings and Conservation Areas) Act 1990

Environment Act 1995

The Hedgerows Regulations 1997; S.I. 1997 No 1160





































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[1] TCP (General Permitted Development) Order 1995 (SI No. 418) (as amended). Schedule 2 part 6 and part 7.

[2] Aeschylus was the classical Greek author of the Oreseteia (Oresteia), which, specifically in the third part, Eumenides, dealt with customary law and its absorption into the law of the state.

[3] In support of the Ancient Monuments Bill 1881

[4] Information provided by the Monmouth archaeological Society in private correspondence

[5] There is considerable evidence that close cooperation of this type is common,

[6] Still producing County History volumes and still voluntary

[7] Founded in 1908 and originally known as the Prehistoric Society of East Anglia

[8] Due to the form of planning legislation the department of the environment found it necessary to introduce planning policy guidelines to aid consistency in planning decisions PPG16 covers archaeology in England its Welsh equivalent is Welsh Office Circular WO 1/95 both should be used in conjunction with D o E 11/95 The use of Conditions in Planning Permissions but unfortunately this is not always the case

[9] From 1979 to 1999 there has been an increase in single honours students from 275 to 1150 but without a corresponding increase in practical training places. Training in Professional Archaeology. English Heritage.

[10] Hunter and Ralston 1993

[11] United States v Diaz 499 F.2d 113 (9th Cir. 1974)

[12] Personal conversation in Lampeter

[13] United States v. Gerber 999 F. 2d 1112 (7th Cir. 1993), cert., denied, 510 U.S. 1071 (1994)

[14] WO 60/96 is the Welsh language version of WO 1/95

[15] 1) The risk of compensation payments

2) The competing pressures of re-development and the preservation of monuments

3) The difficulty in delimiting the important parts of a monument

4) That a scheme for protecting the monument was as likely as scheduling to secure the monument

5) That scheduling does not mean that a monument will be preserved in perpetuity.

6) That developers who had cooperated with the archaeologists in the past may be discouraged from doing so in the future.

7) That it was the developer who had found the site. From Cookson

Many of his comments concerned cost and the risk to development and included compensation payments, the discouragement of developers from further cooperation in archaeological investigation, and the fact that if it were not for the developers the site wood still be unknown.

[16] The courts at that time were inclined not to intervene in planning maters concerning the environment see R v Poole B C [1991], R v Swale B C [1991]

[17] A practical approach to Planning Law 1997

[18] s55 (2)(e) The use of any land for the purposes of agriculture or forestry.is classified as a permitted development

[19] The Hedgerows Regulations 1997;S.I.1997, No 1160

[20] 1.The hedgerow marks the boundary, or part of the boundary of at least one historic parish or township; and for this purpose 'historic' means existing before 1850

2. The hedgerow incorporates an archaeological feature which is-

(a) included in the schedule of monuments compiled by the Secretary of State under s 1 (schedule of monuments) of the Ancient Monuments and Archaeological Areas Act 1997; or

(b) recorded at the relevant date in a Sites and Monuments Record

3. The hedgerow-

(a) is situated wholly or partly within an archaeological site included or recorded as mentioned in paragraph 2 or on land adjacent to and associated with such a site; and

(b) is associated with any monument or feature on that site

4. The hedgerow-

(a) marks the boundary of a pre-1600 AD estate or manor recorded at the relevant date in a Sites and Monuments Record or in a document held at that date at a Record Office; or

(b) is visibly related to any building or other feature of such an estate or manor.

5.The hedgerow-

(a) is recorded in a document held at a Record Office as an integral part of a field system pre-dating the Inclosure Acts; or

(b) is a part of, or visibly related to, any building or other feature associated with such a system, and that system-

(i) is substantially complete; or

(ii) is of a pattern which is recorded in a document prepared before the relevant date by a local planning authority, within the meaning of the 1990 Act, for the purpose of development control within the authority's area, as a key landscape characteristic.'